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HOW TO KEEP 
INVENTION RECORDS 



HOW TO KEEP 
INVENTION RECORDS 

TOGETHER WITH AN EXPLANATION OF 
THE NATURE OF INDUSTRIAL PROPERTY 



BY 

HARRY A. TOULMIN, Jr., J.D., Litt.D. 

MEMBER OF THE FIRM OF TOULMIN AND TOULMIN; MEMBER OF THE BAR OF 
THE SUPREME COURT OF THE UNITED STATES, THE BAR OF OHIO, ETC. J 
FOREIGN MEMBER OF THE CHARTERED INSTITUTE OF PATENT 
AGENTS (great BRITAIN); FELLOW OF THE ROYAL STA- 
TISTICAL SOCIETY OF ENGLAND; MEMBER OF THE 
FRANKLIN INSTITUTE OF MECHANIC ARTS, ETC. 



WITH AN INTRODUCTION BY 
JAMES T. NEWTON 

SOMETIME UNITED STATES COMMISSIONER OF PATENTS 




D. APPLETON AND COMPANY 

NEW YORK LONDON 

1920 






^^ 



COPTRIGHT, 1920, BY 

D. APPLETON AND COMPANY 



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FEINTED IN THU UNITED STATES OT AMEBICA 



OLC 10 1320 
)C!.A691918 



V 

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V 



TO THE MEMORY OF 
HARRY T. TOULMIN 

LATE UNITED STATES JUDGE, SOUTHERN DISTRICT OF ALABAMA 

1838-1917 



PREFACE 

The purpose of this book is an educational one. The 
long experience of my firm as patent counsel over a 
period of thirty years has emphasized the necessity of a 
written explanation, not merely a verbal one, in present- 
ing to members of the bar, inventors, and corporations 
owning inventions, either with or without patent depart- 
ments, the grcwe necessity of adequate records of their 
valuable industrial property, known as inventions, the 
monopoly of which they are seeking for a period of 
years. 

It is the earnest desire of the Bench, the Bar, and busi- 
ness men to prevent litigation wherever possible. It has 
been my experience that when adequate proof of the 
prior right of a party can be produced in readily avail- 
able form with no doubt as to its authenticity, much liti- 
gation can be avoided before passion and prejudice 
plunge the respective parties into expensive and many 
times unnecessary legal disputes. 

Where litigation cannot be avoided, thousands of dol- 
lars are lost annually by the failure of inventors and 
their associates to keep adequate records of their inven- 
tions, their development and reduction to practice, and 
early commercial history. These decisive events must 
be proved in the course of litigation. If they cannot be 
proved at all in varying ways and in varying degrees, 
the case will be lost; if they are proved at all, the failure 



viii PREFACE 

to keep records necessitates roundabout ways of making 
this proof which may not only be unsatisfactory, but is 
usually highly expensive. 

This expense is unnecessary if adequate records are 
kept of the essential steps and their dates in connection 
with inventions. That is the purpose of this book. 

In the first part of the book the general nature of in- 
dustrial property and monopolies granted to protect it 
are discussed; in the second part, a practical method of 
insuring this recording of dates is presented in a series of 
a dozen forms. A final chapter deals with the methods 
of patent investigations. 

Harry A. Toulmin, Jr. 



CONTENTS 



PAGE 

Preface vii 

Introduction xi 



CHAPTER I 

Protection of Industrial Property i 

Monopolies Granted by Governments I 

The Manufacturers' Question 3 

I. Patents , • • • • 3 

1. Mechanical Patents 3 

2. Process Patents , 3 

3. Chemical Patents 3 

4. Design Patents 3 

II. Trade-Marks 12 

III, Labels 17 

IV. Prints 18 

V. Copyrights 19 

Foreign Protection 20 

CHAPTER II 

Record Forms 24 

I. Summary Card 26 

II. Preliminary Sketch Sheet 32 

III. Rese'aech Record 36 

IV. Drawing Form 40 

V. Material Purchase Record 44 

VI. Construction Record Sheet 48 

VII. Test Record Sheet 52 

VIII. Statement by Witness of Test 56 

ix 



X CONTENTS 

PAGE 

IX. Photographic Record Form ........ 6o 

X, Patent Department Record 64 

XI. Follow-Up Form 70 

XII. Patent Litigation Record 74 

CHAPTER III 

Patent Investigations 'j'j 

Anticipation of an Invention 78 

Purchase of Patents . 78 

Infringement 791 

Validity of the Patent 81 

Title 82 

Infringement by Others -83 

Investigations before Invention 83 

Investigation Results 85 



r 



INTRODUCTION 

The prevention of litigation is the primary object of the 
conscientious lawyer, but in the field of industrial prop- 
erty, where many minds are struggling for new and bet- 
ter things in widely separated territories, litigation cannot 
be always avoided. 

Priority of invention or use is the basis of govern- 
mental grants of monopolies, and most of the litigation 
over industrial property has for its object the determina- 
tion of who was the first inventor or user of the thing in 
litigation. 

In this country the first to use the trade-mark, in some 
other countries the first to register, is the legal owner, 
and it is a simple proceeding to determine this matter if 
parties have preserved records of their first and continu- 
ous use. 

In the case of inventions the matter is more compli- 
cated because they are ordinarily first conceived but must 
be reduced to practice before they are legally complete. 
It frequently happens that " A " may be the first to con- 
ceive an invention but " B " the first to reduce to prac- 
tice. It is then sometimes difficult to determine who is 
the first inventor, but if " A " and " B " have kept ac- 
curate records of each step taken in the development of 
their respective inventions, the technician can usually ad- 
vise which is entitled to a patent. 

The author of this book has clearly stated the nature 

xi 



xii INTRODUCTION 

of industrial property and formulated a system, founded 
on the statutes as interpreted in numerous court deci- 
sions, accurately to determine the first user or inventor, 
and if his instructions are followed, justice with the 
minimum of litigation will result. Hence this volume is 
heartily commended to those contemplating entering the 
field of industrial property. 

James T. Newton. 



HOW TO KEEP 
INVENTION RECORDS 



HOW TO KEEP 
INVENTION RECORDS 

CHAPTER I 

protection of industrial property 

Monopolies Granted by Governments 

The Congress shall have power : . . . 

To promote the progress of Science and useful arts, by 
securing for limited times to authors and inventors the 
exclusive right to their respective writings and discoveries: 
(Constitution of the United States, Art. I, Sec. 8.) 

Industrial property is a term covering the whole field 
of property rights protected by the government through 
monopolies granted for terms of years. The subject of 
these monopolies is industrial property. The monopolies 
are secured to their owners by government grants 
awarded on stipulated conditions. 

The grants themselves, protecting industrial property, 
are variously termed patents, trade-marks, and copy- 
rights, which designations include variations of any one 
of these classes. 

How may these monopolies be secured and how en- 
forced? What are the remedies against commercial 
pirates who prey upon the industrial property of their 
competitors rather than rely upon legitimate methods of 



2 HOW TO KEEP INVENTION RECORDS 

commercial competition? What measures do govern- 
ments extend for protection against such practice? 

Only a definition of the boundaries of the subject and 
a statement of the principles of the protection of indus- 
trial property can be touched upon here to give a back- 
ground for the patent records that follow; it must be left 
to highly-trained specialists to carry out the actual prac- 
tice of protecting this type of property in all its details. 

This chapter will only attempt to outline the situation 
in a way that the writer has found by frequent consulta- 
tions with clients to be of value to them. 

For the purpose of discusssing this extensive field of 
the protection of industrial property, assume this typical 
instance of a corporation, manufacturing a new product, 
to be marketed in the United States, the North and South 
Americas, and in other foreign lands, making its plans 
for protection open to the corporation at home and 
abroad. Further, assume that the corporation is manu- 
facturing a commodity which is a product of the mechani- 
cal, electrical, and chemical arts, for instance a soap; 
that to manufacture this commodity, a new process must 
be used ; that the commodity is marketed with the trade- 
mark of the corporation indicating the origin of the goods, 
and the goods are shipped throughout the world ; assume 
that the box in which the commodity reaches the ultimate 
consumer bears the distinctive labels of the firm; that the 
distinctive mark of the house is used in the form of 
" prints " employed in advertising, but not attached to 
the goods directly nor to the cartons containing the goods ; 
and that books of instruction explaining the uses of the 
commodity accompany it. 



PROTECTION OF INDUSTRIAL PROPERTY 3 

All these things are the product of the exclusive energy, 
genius, ingenuity, and creative thought of the new or- 
ganization made possible through its financial resources 
and the activity of its personnel. 

The Manufacturers' Question 

The signal question immediately arises, what, if any, 
part of this exclusive property can be taken by the cor- 
poration's competitors or by any of the general public? 
What protection does the government of the United 
States afford, and what protection do foreign govern- 
ments- afford, for these articles of industrial property 
brought into being by this corporation? Can competi- 
tors imitate, and, if so, to what extent can they imitate 
the product, its dressings, the form in which it is delivered 
to the public, the advertising, the sales methods, and 
even the appearance of the article itself ? 

I. Patents 

The first question which will arise will be that of 
patent protection. Patents are variously divided into 
those known as mechanical patents or patents covering 
machines, patents for a process or method of producing a 
particular product, patents for chemicals or compositions 
of matter, and patents for designs to protect in an exclu- 
sive way specific configurations of ornamental character. 

To summarize the classes of patents: 

1. Mechanical 

2. Process or art 

3. Composition of matter (chemical) 

4. Design. 



4 HOW TO KEEP INVENTION RECORDS 

Probably the machinery used in this particular corpor- 
ation to produce the soap would be the first considera- 
tion. How can this machinery be protected? The pro- 
cedure would be to secure patents on the mechanism, or 
mechanical patents. 

After having passed by the question of protecting the 
machinery for producing a soap, then the question would 
arise whether or not the process by which the soap was 
made could be protected. In the making of soap the 
various machines employed, for the patenting of which 
we have already provided, would probably be used in 
series, each one carrying out a correlated and coordinated 
step in the method of producing the final product of the 
finished soap. Step by step, from machine to machine, 
this process would progress, until the finished article, 
ready for consumption, was finally secured. The 
machines employed in the manufacture of soap and em- 
ployed in this process, would probably be electrically 
driven and would involve the application of heat, light, 
electricity, chemistry, pneumatics, hydraulics, etc. Some 
of the operations in producing the soap would have to be 
guided or performed by hand, while others would be 
performed by machines of more or less automatic nature. 
The series of steps so related would be a process and, 
consequently, patentable. " The generic definition of the 
process is, ' an operation performed by rule to produce 
a result.' " ^ 

The soap itself is a product of an ingenious chemical 
compound, we may well assume, and is, therefore, en- 
titled to ample protection. A patent or patents will be 

1 Walker on Patents, 4th ed., p. 3. 



PROTECTION OF INDUSTRIAL PROPERTY 5 

granted to protect the corporation in its ownership of the 
compounds or formulae which represent the various com- 
binations of material which, when taken together, rep- 
resent the completed product. The term " composition 
of matter," is inclusive of all composite articles which are 
the union of two or more ingredients, irrespective of 
whether this union is a chemical one, a mechanical one, 
or whether the elements so combined are in the form of 
gases, liquids, or solids. A composition of matter is 
patentable providing, of course, that it is eligible under 
the rules provided for the granting of patents. 

The soap itself may be turned out with a certain de- 
sign upon each cake or bar, or a specific configuration or 
shape which is both novel and ornamental. Such a design 
is valuable because it lends some artistic quality to the 
product, makes it attractive to the purchaser in the 
aesthetic sense, and lends a certain distinction to the manu- 
facturer's offering to the public. A design patent would 
protect this feature. 

Design patents have been defined variously, but no 
definition is, perhaps, more apt than the definition of the 
Circuit Court of Appeals for the Second Circuit, in Howe 
V. Blodget & Clapp Co.^ No Court of Appeals in the 
United States has had more experience or has passed 
with greater learning and care upon patent questions than 
that of the Second Circuit; a definition from that Court 
is particularly helpful, and especially so in this case be- 
cause the Court adopted the definition of Judge Town- 
send, sitting on circuit, who spoke as follows : 

2 112 Fed. 61. 



6 HOW TO KEEP INVENTION RECORDS 

Patents for designs are intended to apply to methods or 
ornament, in which the utility depends upon the pleasing 
effect imparted to the eye, and not upon any new function. 
. . . Design patents refer to appearances, not utility. 
Their object is to encourage works of art and decoration 
which appeal to the eye, to the aesthetic emotions, to the 
beautiful. 

Further, the structure for a design must be unitary, 
must be ornamental as opposed to the useful qualification 
of mechanical patents, and must, of course, be novel. An 
article cannot both be copyrighted and be the subject of 
a design patent. " The author or owner is driven to his 
election and must stand by his choice." ^ In the case of 
trade-marks, if the subject of a design patent is identical 
v^ith the subject matter covered by a trade-mark, the 
Patent Office has decided that when a certain device has 
had a design patent issued to cover it, the Office will not 
grant another registration for the same design as a trade- 
mark, because that would impair the right of the design 
patentee.^ If a design patent has expired, then its sub- 
ject matter may be registered as a trade-mark, provided, 
of course, that the trade-mark statutes are complied 
with.^ It has been held that " the designer of articles of 
manufacture not otherwise entitled to receive design 
patents, cannot justify the issuance of such patents on the 
theory that the design is a trade-mark. " ^ 

No attempt is made in this discussion to define inven- 

3 Louis De Jonge & Co., v. Brenker & Kessler Co., 182 Fed. 150. 

4 Lee & Shepard, 24 O. G. 1271. 

5 King, 46 O. G. 1 19. 

« Rowe V. Blodgett, etc., Co., 112 Fed. 61; Coates et al v. Merrick 
Thread Co., 149 U, S. 562. 



PROTECTION OF INDUSTRIAL PROPERTY 7 

tlon either inclusively or exclusively, because that is a 
matter for specialists highly trained in the technical rules 
of patent practice. The sole object of this chapter is to 
outline what protection the governments afford, without 
making any attempt to discuss the multitude of technical 
rules which govern the granting in specific instances of 
particular protection. 

The corporation now has, we may assume, material 
for mechanical patents, process patents, composition of 
matter patents, and design patents, and has thus pro- 
ceeded to the protection of such property. 

A patent is an exclusive grant or monopoly awarded 
to an inventor or author in return for his making known 
and, therefore making available to the public, his dis- 
covery, or creation. This exclusive right for the speci- 
fied term of years is the exclusive right to make, use, 
and sell. The exclusive right to make, use, and sell is 
the cardinal trinity, the quality of which is defined by 
the word exclusive. The patent law does not give the 
right merely to make, use, and sell, because that is pre- 
sumably inherent in the production of the article, but 
what the patent law does give is the beneficial exclusive 
privilege.'^ 

The term of mechanical, process, and composition of 
matter or chemical patents is seventeen years of the ex- 
clusive privilege to make, use, and sell the subject matter 
covered by the particular patent. Different terms are 
provided for design patents; they are granted for the 
varying terms of three and a half, seven, and fourteen 

' U. S. R. S. 4884. 



8 HOW TO KEEP INVENTION RECORDS 

years, as the applicant may, in his appHcation, elect.^ 
Inventions may be invented by one man or by several. 
If by one man, it is known as a sole invention; if by more 
than one, it is known as a joint invention. Great care 
and caution should be exercised before the application 
for the patent is filed to determine the exact nature of the 
inventorship, whether sole or joint, because, unless this 
is properly determined, it may lead to a defeat of the 
application or patent. Many corporations employing a 
number of inventors amongst whom there is consider- 
able rivalry have experienced a great deal of difficulty 
in determining exactly who were the inventors. It 
is highly essential that this be determined with great 
care. 

As to what person may apply for and receive a patent 
for his invention or discovery, it is best to quote the lan- 
guage of the statute, which says : 

Any person who has invented or discovered any new 
and useful art, machine, manufacture, or composition of 
matter, or any new and useful improvements thereof.® 

The patent may be obtained provided that the invention 
has not been known or used by others in this country be- 
fore the invention or discovery thereof, and provided it 
has not been patented or described in any printed publi- 
cation in this or any foreign country, before the invention 
or discovery thereof, or more than two years prior to the 
filing of the application ; and provided, further, that the 
subject matter of the application has not been in public 

8 U. S. R. S. 4931 ; Patent Office Rules No. 80. 
8 U. S. R. S. 4886. 



PROTECTION OF INDUSTRIAL PROPERTY 9 

use or on sale in this country for more than two years 
prior to the appHcation, unless the same is proved to have 
been abandoned. Upon this same question, it is to be 
observed that no person will be barred from receiving a 
patent for his invention nor will have his patent declared 
invalid, when the invention has been patented by him or 
his assignee in a foreign country, unless the application 
filed in the foreign country was filed more than twelve 
months prior to the filing of his application in the United 
States. The time of twelve months is shortened to four 
months in the case of designs. ^*^ 

The method of applying for a patent is to state fully 
and clearly the exact nature of the invention in what is 
known as a specification, illustrated by proper drawings, 
and the exact nature of what the inventor believes to be 
his exclusive property being defined by what is known 
as claims. Claims define the boundaries of the monopoly. 
No legal instrument requires more learning and skill to 
draw properly than a patent claim. The preparing and 
prosecution of an application is a matter for highly- 
trained specialists. 

A provision is made for reissue of a patent under cer- 
tain conditions, some of which are the reissue of a patent 
which is inoperative or invalid by reason of a defective 
or insufficient specification or by reason of the patentee 
claiming more than he had a right to claim, provided the 
error has occurred by reason of inadvertence, accident, 
or mistake, without any fraudulent or deceptive intent. 
It is a matter of considerable difficulty, usually, to have 
patents reissued, and when they are reissued, they fre- 

10 U. S. R. S. 



lo HOW TO KEEP INVENTION RECORDS 

quently involve a great many technical questions, so that 
it is, altogether, a matter to be avoided, i£ possible. It 
is rare that the patent is ever reissued when more than 
two years have elapsed. Then, too, if during the in- 
terval before the patent is reissued, any rights of other 
parties have intervened, that may prove a vital stumbling 
block to the securing of the new patent. Extensions are 
granted only by act of Congress, a matter too cumber- 
some for use except in the rarest cases. 

The invention and the application for the patent may 
be assigned in whole or in part, or rights under patents 
may be granted by means of a license.^^ The interests 
may be invested in assignees, in grantees of exclusive 
territorial rights, in mortgagees, and, as has been pointed 
out, in licensees. Definitions of the kinds of interests so 
acquired by these transfers are best set forth in Patent 
Office Rule No. 196: 

(i) An assignee is a transferee of the whole interest 
of the original patent or of an undivided part of such 
whole interest, extending to every portion of the United 
States. The assignment must be written or printed and duly 
signed. 

(2) A grantee acquires by the grant the exclusive right, 
under the patent, to make, use, and vend, and to grant to 
others the right to make, use, and vend, the thing patented, 
within and throughout some specified part of the United 
States, excluding the patentee therefrom. The grant must 
be written or printed and be duly signed. 

(3) A Mortgage must be written or printed and be duly 
signed. 

(4) A licensee takes an interest less than or different 

11 U. S. R. S. 4895 and 



PROTECTION OF INDUSTRIAL PROPERTY ii 

from either of the others. A license may be oral, written, 
or printed, and if written or printed, must be duly signed. 

The government requires in the way of fees, $15 at 
the time of filing the application and $20 upon allowance 
of the application. This $20 is payable any time within 
the six months from the date of allowance.^^ This ap- 
plies to all patents except design patents. Fees for de- 
sign patents vary with the term of years for which they 
are granted. They are, for the three years and six 
months, $10; seven years, $15; and for fourteen years, 
$30. On the application for reissue of a patent, the fee 
is $30. 

At this point, it might not be out of place to caution 
that marking carefully, with the word " patented " and 
the day and year of the patent, machines embodying the 
invention covered by the patent, to identify the patent 
with the machines manufactured under it, is essential. 
Further, and perhaps more important still, great care 
should be used to mark only machines which actually 
embody the invention for which the patent is issued. 
False marking is a serious matter and may subject the 
person who so marks to embarrassing difficulties. The 
marking is valuable because it gives notice to the public 
of the fact that the machine, or whatever it may be, which 
is the subject of the patent, is actually patented. This 
acts as a warning and is useful in case of a suit, because 
no specific notice is then necessary from which to date a 
recovery for the invasion of the monopoly. ^^ 

We have now proceeded with the protection of the 



12 U. S. R. S. 4885 and 4934- 

13 U. S. R. S. 4900 and 4901. 



12 HOW TO KEEP INVENTION RECORDS 

business of the corporation we have in mind to a point 
where we have patents applied for or granted which will 
protect the machinery, the process of producing the pro- 
duct, or the art or method of producing it; the chemical i 
composition or union of the various elements which go 
into the making of the soap ; and the design of the fin- 
ished article itself. So much for the manufacturing 
end. 

But what of the distribution and sales end of the busi- 
ness, what of the protection against commercial pirates 
imitating this product in form, in design, in labels, in 
wrappings, in boxes, in cartons, in advertising, etc., in 
which and through which the product may become known 
to the general public, who have no means of knowing 
that this article is the article produced by the particular 
company except through these distinctive dressings, 
wrappings, and advertising used by the company to 
designate its product. 

The means of protection of this kind of industrial 
property are found in trade-marks, labels, prints, and 
copyrights. 

11. Trade-Marks 

A trade-mark is " the commercial substitute for one's 
autograph." ^^ It is an arbitrary, distinctive mark or 
designation, indicating the origin and ownership of the 
goods to which it is attached or the cartons in which the 
goods are sold.^^ 

In this business of marketing soap, the trade-mark 

1* Leidersdorf v. Flint, Fed. Cas. No. 8219. 

15 Standard Paint Co. v. Trinidad Asphalt Mfg. Co., 220 U. S. 
446; Elgin National Watch Co. v. Illinois etc. Co., 179 U. S. 665. 



PROTECTION OF INDUSTRIAL PROPERTY 13 

could be impressed upon the soap itself or printed upon 
the wrappings of the soap or on the boxes containing it. 
It could be used in all these ways. It could be used in 
the advertising, in the trade literature of the concern, and 
in all the various ways that might occur to the ingenious 
sales manager in identifying the high quiality of his 
product with this distinctive mark, so that a purchaser 
once having used soap of this character which he found 
satisfactory would have a ready means of calling for 
the same article again when he needed any additional 
supply. 

Who may register a trade-mark? A trade-mark may 
be registered by any person, firm or corporation or as- 
sociation domiciled within the territory of the United 
States or residing or located in any foreign country, 
which, by treaty, etc., affords a similar privilege to the 
citizens of the United States, and who is the owner of 
such trade-mark and uses it in commerce with foreign 
countries or in interstate commerce.^® Further, the 
owner of a trade-mark residing or located in a foreign 
country but having a manufacturing establishment within 
the United States may register his mark for the products 
of such establishment upon complying with the proper 
provisions of the law.-'-''^ 

What may be registered as a trade-mark? A trade- 
mark must be a distinctive device, word, or phrase of 
identification, arbitrary in character and not merely de- 
scriptive of the goods to which it is attached. It must 
not be of improper character, or consist of or comprise 

i« Act of February 20, 1905, i and 29. 
17 Act of May 4, 1906, 3. 



14 HOW TO KEEP INVENTION RECORDS 

the flag of the United States or any of the emblems of 
the political sub-divisions thereof or of any foreign na- 
tion, or the emblem of any fraternal society unless in the 
last case proof of prior adoption can be shown to the 
satisfaction of the Commissioner of Patents. The 
trade-mark must not be registered or a non-registered 
trade-mark owned and in use by another and appropriated 
to merchandise of the same descriptive properties as that 
of the applicant, because, if the trade-mark were granted 
to the applicant, it would be likely to cause confusion or 
mistake in the minds of the public or deceive purchasers. 
The mere name of an individual, firm, corporation, or 
association which is not printed or written, impressed or 
woven in some particular manner or in association with 
the portrait of an individual, is not eligible to registra- 
tion. Geographical terms cannot be registered. Por- 
traits of living individuals cannot be registered as trade- 
marks except on the written consent of such individuals,^^ 
The trade-mark is registered by the filing of an ap- 
plication accompanied by five specimens of the mark as 
it is actually applied to the goods, and a drawing show- 
ing the mark. The application must state, amongst other 
things, the particular class of goods upon which the mark 
is to be applied. The U. S. Patent Office has divided all 
products into fifty classes. Then the particular kind of 
merchandise in that particular class must be set forth, 
with a statement as to how the mark is applied and af- 
fixed to the goods, and the length of time during which 
the trade-mark has been used upon the goods. The 

18 Act of February 20, 1905, 5 ; and the Act of March 2, 1907, 5 ; 
Act of February 18, 191 1, 5'. 



PROTECTION OF INDUSTRIAL PROPERTY 15 

trade-mark must, of course, have been used in interstate 
commerce. ^^ 

Upon the allowance of the application, the mark will 
be published at least once in the Official Gazette issued 
by the Patent Office, and the publication shall be at least 
thirty days prior to the date of registration. If no one 
files a notice of opposition within -fehirty days after the 
publication, then a certificate of registration will be is- 
sued. ^^ This opposition, if made, would consist in the 
filing of a statement showing that the mark did not be- 
long to the person who was applying for registration of 
it, or that the mark was so similar to the opposer's mark 
that it would cause confusion in the minds of the public, 
etc. 

The term for which the exclusive right to the mark 
is granted is twenty years, except in the case of trade- 
marks previously registered in a foreign country, in 
which case the protection ceases on the same day on 
which the trade-mark ceases to be protected in the foreign 
country. Certificates of registration may be renewed 
from time to time for periods of twenty years upon the 
payment of renewal fees.^^ 

Even though a trade-mark may not be technically a 
trade-mark and, therefore, not registrable in the U. S. 
Patent Office, yet if that trade-mark was in use for ten 
years (see also the one-year provision in the Act of March 
19, 1920) or more prior to February 20th, 1905, then that 
mark can be registered irrespective of its failure to com- 

i^Act of February 20, 1905, 2; Act of February 18, 1909, 2. 

20 Act of February 20, 1905, 6. 

21 Act of February 20, 1905, 12. 



i6 HOW TO KEEP INVENTION RECORDS 

ply with the technical requirements of the trade-mark 
law.^^ 

The fees are $io for filing an original application, and 
$io for filing a renewal. 

A number of states in the United States provide for 
registration of trade-marks. This state registration is 
comparatively inexpensive, and is of value because a 
registration in leading states like New York, Pennsyl- 
vania, Ohio, Illinois, etc., would prevent any infringer 
from using the same mark, because he would not be able 
to distribute the goods under that infringing mark in 
those states in which his commercial possibilities would 
be large. By using the state registration, even though in 
a few of the states, it is sufficient to break up any prac- 
tical commercial plans of the infringer. 

These trade-marks can only be assigned when the 
businesses which they identify are assigned. They can- 
not be assigned separately. The reason is apparent, be- 
cause the vital point of the whole matter is that the trade- 
mark shall identify the business and is inseparable from 
it. 

A very efficient form of protection in certain instances 
is the registration of the mark through the Treasury 
Department of the United States Government. It is 
provided that no article which shall bear a copy or simu- 
lation of a trade-mark registered in accordance with the 
provisions of the law in the United States, or an article 
which is manufactured in any foreign country or locality 
other than that in which it is in fact manufactured, shall 
be admitted to an entry at any customs house of the 

22 Act of February 20, 1905 (as amended January 8, 1913), 5 (b). 



PROTECTION OF INDUSTRIAL PROPERTY 17 

United States. In order to aid the officers of customs to 
enforce this prohibition, any domestic manufacturer or 
trader or any foreign manufacturer or trader entitled to 
protection by a treaty, etc., can have a copy of the cer- 
tificate of registration of his trade-mark recorded in the 
books of the Department of the Treasury. Facsimiles 
of the mark are to be furnished to the Secretary of the 
Treasury, which copies will be distributed to the customs 
houses or proper officers in the various ports of entry of 
this country. This has a practical meaning, in that it 
prevents the importation into this country of inferior 
articles of manufacture by outsiders who cannot be 
reached for infringement of the trade-mark under which 
they are shipping the goods into this country and deceiv- 
ing the public by the unauthorized use of a domestic trade- 
mark or a simulation of it.^^ 

The trade-mark must be marked by a notice of registra- 
tion in the U. S. Patent Office. The same rule in regard 
to notice and its advantages applies to trade-marks as to 
patents. ^^ 

III. Labels 

A label is a special form of designation identifying the 
product, and usually bears the name of the article and of 
the maker or seller, with the address ; and sometimes di- 
rections for the use thereof. The -label must be sugges- 
tive of its relations to the article to which it is attached 
or connected. 

This is a wise requirement In view of the fact that it 

23 Act of February 20, 1905, Sec. 27. 
2* Act of 1905, Sec. 28. 



i8 HOW TO KEEP INVENTION RECORDS 

must be impressed or stamped directly on the article or 
upon its container. This fact is the essence of its char- 
acter. The fee for recording is $6; there is no final 
fee. 

The term of exclusive protection shall be twenty-eight 
years with the privilege of renewal.^^ 

IV. Prints 

A print is "an artistic representation or intellectual 
production not borne by an article of manufacture or 
vendible commodity, but in some fashion pertaining 
thereto, such, for instance, as an advertisement thereof." ^^ 
The print is used as a decorative emblem or artistic repre^ 
sentation which -the company will employ upon its adver- 
tising, in its trade literature, in its circulars, and in its 
publications which describe its product and its use. It 
must refer to the article which it advertises, although it 
need not be attached to it. Like the label, it is related to 
the copyright law, and like the label is copyrightable. 
The term of registration of a print is twenty-eight years, 
and the fee for filing an application is the same as that 
of the label. The print and label are registered in the 
Patent Office even though the act pertaining to them is a 
part of the old copyright law. The print is primarily an 
artistic representation, and is distinguished from the label 
by not being borne by the article of manufacture or its 
container as the label would be. It is used in the ad- 
vertisement of the article primarily. Its purpt)se is to 
protect the public in its purchase by advertisement in con- 

25 Act of June i8, 1874 5 and Act of March 4, 1909. 
^^ Ex parte Bowles, 97 O. G. 2308. 



PROTECTION OF INDUSTRIAL PROPERTY 19 

nection with goods of acknowledged standard. It must 
not be connected absolutely with the fine arts, for then it 
would be subject to copyright only, but it must have some 
artistic quality as well as a commercial character. 2''' Both 
prints and labels may be assigned by an instrument in 
writing signed by the proprietor. Either an individual, a 
firm, or a corporation or the representatives of such ap- 
plicants can apply for registration of the print or label. 

V. Copyrights 

The copyright act gives to the author the exclusive 
right to print, reprint, publish, copy, and vend his copy- 
righted work for the period of twenty-eight years with 
renewal privilege for similar periods. 

The particular interest of copyright in our illustration 
is the copyright of the manuals of instruction, or the 
books of description of various uses of the soap. The 
literature of the corporation may consist of booklets or 
pamphlets describing the process by which the soap is 
made, or the particular factory in which it is made, or 
any other matter of interest which the corporation may 
desire to put before the public. These booklets, pamph- 
lets, etc., can be copyrighted. Any photographs, prints, 
and pictorial illustrations can be copyrighted. Likewise, 
as is becoming the modern custom amongst large corpora- 
tions, moving pictures of scenes about the plants or of the 
process of its manufacture are being taken. These mov- 
ing pictures can be copyrighted as well as motion picture 
photoplays which are taken in and about the plant; they 
are now largely used for advertising commercial institu- 

27 Act of June 18, 1874; and Act of March 4, 1909. 



20 HOW rO KEEP INVENTION RECORDS 

tions. Likewise drawings or plastic work of a scientific 
character, works of art, models or designs of works of 
art, and reproductions of works of art can be pro- 
tected. ^^ 

Under the Act of 1909, the method of securing copy- 
rights is as follows : The publication has placed upon it 
the notice of copyright, giving the word copyright, or 
some similar designation, followed by the year and the 
name of the copyright proprietor. The book or pamphlet 
is published; this initiates the copyright. Then the ap- 
plication for copyright is filed, giving the date of publica- 
tion and other pertinent matters required. Then the 
certificate of registration for the copyright will issue. 
The Act of 1909 is peculiar in that the copyright notice 
is placed upon the book, etc., and the book is distributed 
to the public before the registration is actually granted. 

Foreign Protection 

We now come to the problem of the corporation dis- 
tributing its goods in foreign countries. 

It is unwise for any corporation which has a product 
worthy of its name to distribute its product in foreign 
countries unless it has some measure of patent or trade- 
mark, or possibly copyright protection, or all of them, if 
possible, provided, of course, it is permissible to secure 
such protection. When it is possible, it is poor business 
judgment not to secure such protection in the countries 
into which the products will go. This is true for two 
reasons : first, because of the monopolistic protection af- 
forded which can be enforced by legal means; and, sec- 

2s Act of March 4, 1909. 



PROTECTION OF INDUSTRIAL PROPERTY 21 

ond, because of the monopolistic protection afforded by 
the warning notice of registration, which is, in effect, a 
moral means. The latter has been found, in many cases, 
to be most effective to deter unscrupulous individuals 
from appropriating the property of those to whom it 
rightfully belongs, but who are located at a distance from 
the point of distribution in the foreign country. 

Foreign patents can be obtained generally under the 
International Convention. The question of foreign 
patents should be taken up at once upon the filing of the 
applications for patents in the United States. The ques- 
tion can then be disposed of with safety and with op- 
portunity to comply with the provisions of the foreign 
laws and international agreements. No attempt will be 
made here to go into the technicalities of this procedure. 

Particularly necessary is the registration of trade- 
marks in foreign countries, because goods are so largely 
bought in those countries by reason of distinctive marks. 
The mark is particularly effective in use in Latin and 
Oriental lands. The trade-mark adopted should be de- 
signed so that it will be readily pronounceable or useable 
in foreign countries in which a language other than Eng- 
lish is spoken. In some cases the trade-mark has to be 
registered in the United States first before it can be regis- 
tered in foreign countries; in other cases this is not 
necessary. The provisions of foreign laws are very 
technical and require a thorough knowledge of local con- 
ditions to understand and interpret them. Various re- 
quirements for legalizations, actions of certain consuls, 
etc., make the matter one of great care. Manufacturers 
from time to time are misled into signing powers of at- 



22 HOW TO KEEP INVENTION RECORDS 

torney in foreign languages which bring great disaster 
upon them because the powers confer a degree of author- 
ity which the manufacturer would not consent to if he 
had understood the language of the power. The rule in 
many countries, principally in South American countries, 
is that the first to register a mark, is the owner and can 
keep all others from using that mark. In the United 
States the rule is to the contrary ; namely, that the regis- 
tration of the mark is only prima facie evidence of own- 
ership, and if the real owner can prove his prior title to 
the mark, he can defeat the registration and exert his 
exclusive right to it. 

This foreign rule works to the great loss of many 
manufacturers who send their goods into foreign coun- 
tries, if they have not registered their mark, because some 
enterprising commercial pirate, as is frequently the case, 
seeing the prospects of the concern coming into that coun- 
try, registers the mark in his own name before the goods 
are sold in that particular locality. The pirate gambles 
on the chance of holding up the manufacturer when he 
starts to distribute his goods, because usually a penalty 
in the shape of a fine, or even imprisonment, is attached 
to sending goods into a country under a mark which be- 
longs to another. The pirate, having secured registra- 
tion of the mark belonging to the American manufacturer, 
awaits his opportunity when the manufacturer imports 
the goods. The goods having been shipped into that 
country, the manufacturer is confronted with the fact 
that his mark is owned by another in a technical sense, 
and in a sense which will be enforced by the laws in that 
foreign country. He either has to use a new mark or 



PROTECTION OF INDUSTRIAL PROPERTY 23 

buy off the man who has perpetrated what is a moral 
fraud. This has been the actual experience of a number 
of manufacturers. 

The conclusion to be reached in this foreign matter is 
that if the manufacturer is going into foreign fields, or 
has prospects of going into foreign fields, he should look 
to his foreign protection in the early stages of the busi- 
ness. 

The foregoing discussion outlines the various forms 
of protection which a corporation or an individual or a 
partnership engaging in business involving industrial 
property may secure. 

The monopolies frequently grow to great values. 

The wise provision of the United States statutes for 
the protection of industrial property has been the cor- 
nerstone for the building of our industrial and commercial 
prosperity. The provisions of these laws are such as to 
encourage the creation and invention and discovery of 
things useful to the public, which are granted the protec- 
tion of temporary monopolies in favor of the inventor or 
owner or discoverer, in return for the corresponding 
benefit that the disclosure confers upon the public. 

In the United States there are no working provisions, 
no compulsory license systems, no annual taxes or other 
burdens which are frequent and almost universal in 
foreign countries. In this lies a part of the explanation 
of our great activity in the field of industrial property and 
our signal leadership in the creation of remarkable ma- 
chinery, chemical compounds, and ingenious devices gen- 
erally, which have so widely benefited humanity, and in 
our literary and artistic creations as well. 



CHAPTER II 

RECORD FORMS 

The numbered paragraphs in the following explanatory 
sections refer to the paragraphs of similar number on the 
corresponding forms. The instructions for making the 
entries in each of the paragraphs on the forms will be 
found in these explanations in this chapter.^ 

The fundamental purpose of all records of inventions 
is to provide an unquestionable statement of exactly what 
occurred; hence, any additional details are always wel- 
come to make certain and clear the I'ecord of the events 
as they transpire. 

The accomplishment of this purpose will make it easy 
to prove the dates to prevent others from usurping that 
which belongs to the inventor or corporation. Sound 
proof of this character will prevent litigation, and if litiga- 
tion does become necessary, makes success a certainty as 
far as it is humanly possible to make it. 

1 Large copies of these forms for record purposes may be obtained 
from the autlior, in care of Toulmin & Toulmin, Schwind Building, 
Dayton, Ohio. 



24 



FORM I 
SUMMARY CARD 



Form I. Summary Card 

ORDER NO. ...... 

Invention or Name of 
Machine 

1. Conceived, date of by 

2. Disclosed, dates of 

3. " To ( I ) How disclosed 

4. (2) " " 

5. (3) " " 

6. Sketches, dates of 

7. Written Description, date of 

8. Working Drawings (a) Started day of 19. . 

9. (&) Completed . .day of 19. . 

10. Started Full-Sized Machine day of 19. , 

11. Completed Full-Sized Machine. . . .day of 19. . 

12. Photographs of : 

13. Start of Full-Sized Device, taken day of . . . 19. . 

14. Completion of Full-Sized Device, taken, .day of . . . 19. . 

15. Date Tested : 

16. Where Tested : 

17. Result of Test : 

18. Remarks : 

19 

20 

21 

22 

23 

24 

26 



Form I. Summary Card 

1. Place here the date on which the idea took shape 
in your mind as a general conception of the invention. 
Record here the date as soon as possible after you con- 
ceive your invention. The name of the inventor or in- 
ventors should likewise be inserted. 

2. After having gotten the idea worked out in your 
own mind, the next step is to tell another about it and 
explain the invention. The explanation should be suffi- 
cient to give the other person such an idea of your inven- 
tion that, if you died suddenly, the invention would be in 
such form in the other person's mind or on the papers 
which you used to explain to him the invention that it 
could be carried out and reduced to practice as a practical 
machine, compound, etc., without you. 

3. 4, 5. State here the name of the person to whom 
disclosed and how you disclosed the invention. Disclos- 
ure may be verbal, or by a sketch or by a demonstration 
of how the machine works or how the compound is mixed, 
with its results. 

6. Sometimes sketches are used to illustrate the inven- 
tion in the course of disclosure. Again sketches are 
made in the course of reducing the conception of the in- 
vention to practical form, preliminary to producing work- 
ing drawings. In such a case the date of the sketches 
should be put upon the sketches themselves. 

7. If the invention is complicated enough to necessitate 

27 



28 HOW TO KEEP INVENTION RECORDS 

a written description, it is well to write out a plain de- 
scription referring to the sketches by number and date 
and to the parts of the sketches by letters or numerals. 
This description should be sufficient to enable*any one to 
understand your invention clearly. 

8 and 9. The date when the working drawings are 
started should be recorded on the drawings themselves 
and recorded here on this record ; likewise the completion 
of the drawings should be recorded. The working 
drawings are usually preliminary to the building of the 
full-sized machine on a commercial basis. 

10. Record here the date of the starting of the con- 
struction of the full-sized machine. 

11. Record here the date of the completion of the full- 
sized machine. 

12. The photographs should be taken of the machine 
at various stages, with the order number appearing on 
the card placed with the device being photographed so 
that it will show in the photograph. Describe here the 
various views taken. It is well to put the order number 
on the card, together with the date of taking the photo- 
graph, or put it on the machine or somewhere in the pic- 
ture so that it will be included in the photograph. 

13. 14, Record here the dates of starting and complet- 
ing the construction embodying the invention by record- 
ing the dates of the photographs of the machine taken at 
those times. 

15. When the machine is completed, it should be tested 
at once. The date tested will be inserted here. 

16. The place where it was tested, stating if it was 
tested in more than one place, should be inserted in this 



RECORD FORMS 29 

blank. If it is a vehicle or similar equipment, then state 
the nature of the road on which it was tested, the dis- 
tance, the speed, and over what highways the test oc- 
curred, so that proof of the condition of the highway 
may be made at a later date, if necessary. 

17. The result of the test as to its success should be 
recorded here. Such items as to speed, production on 
the machine, effectiveness of the invention, etc., should all 
be recorded under the result of the test. 

18 to 24. Other information relative to the machine 
can be recorded here on the summary card under " Re- 
marks," with particular reference to commercial use, 
whether machines were built for others, the extent of pro- 
duction on the machines or extent of production of the 
compound if it is a chemical, food product, etc. 

I 



FORM II 
PRELIMINARY SKETCH SHEET 



Form II. Preliminary Sketch Sheet 

Order No. 



I. Subject: 

2. 



3. Explanation: 



4. Sketched by Date 

5. Witnessed by Date 

6. To Whom Explained Date 

(«) 

(b) 

(0 

32 



Form IL Preliminary Sketch Sheet 

On this sheet should be recorded first the order number 
at the upper right-hand corner. 

1. The subject of the invention should be entered 
here. 

2. In the square should be Inserted a sketch of the 
idea or a record of the formula, if it is a compound. A 
number of these sheets may be used to illustrate various 
phases of the invention and various parts of it. 

3. An explanation of the invention should be made In 
this space so that any one reading the sketch could refer 
to the explanation containing references by letters or 
numerals to the parts of the sketch, thus affording a 
complete understanding of the invention. 

4. The signature of the inventor who sketched his 
ideas on the sheet should be put here, together with the 
date of making the sketch. 

5. The signature of the person who witnessed the 
sketch should be inserted here, together with the date of 
signing his name. 

6. The signature or names of the persons to whom the 
invention was explained should be inserted in this blank, 
together with the date on which the explanation was made 
to them. 



33 



FORM III 
RESEARCH RECORD 



Form III. Research Record 

ORDER NO. 



I. Object: 



3 

4 

5. Apparatus : 
6 

7 



9. Materials: 
10 

11. 

12. Method or Process : 

13 

14 

15 ', 

16. Result: 

17 

18. Experiment By : Date. 

19. Witnessed By : Date. 

20. Directed By : Date . 

36 



Form III. Research Record 

In large concerns it is very important to have a lab- 
oratory record of the experiments which may result in 
inventions being made in the laboratory. For this pur- 
pose, a research record is provided, which I have found 
by personal experience to be a very valuable one to have. 

The order number, which will follow the invention 
throughout its history, is inserted at the upper right-hand 
corner at the start of the experiment and beneath it is 
placed the subject. 

I, 2, 3, 4. On these lines should be stated the object 
of the experiment and what the problem was that was 
being solved, 

5, 6, 7, 8. Describe here, and sketch if necessary, the 
apparatus employed. 

9, 10, II, Insert here a record of the materials used 
and their quantities, temperatures, specific gravities, etc, 

12, 13, 14, 15, Place here a complete description of 
the method or process of operating the apparatus, the 
employment of the materials, together with a statement 
of quantities and temperatures, so that any one can prac- 
tice the invention or experiment after having read the 
description of the apparatus, materials, and methods. 
This is particularly important when a process or method 
is involved as distinguished from a purely mechanical 
invention. A method or process is an invention which 
may be produced irrespective of the particular apparatus 

Z7 



38 HOW TO KEEP INVENTION RECORDS 

involved. The apparatus may be varied to suit the con- 
ditions, while the process in its essentials will remain the 
same. 

1 6, 17. The results should be recorded here, giving 
facts in detail. 

18. The experimenter should sign his name here and 
insert the date of the experiment. If it extends over 
more than one date, he should indicate the start and the 
completion of the experiment. 

19. Any one who witnessed the experiment should in- 
sert his name here and the date. 

20. The person who directed that the experiment be 
made and under whose direction the experiment was 
made, such as the director of a laboratory, should insert 
his name and the date here. 



FORM IV 
DRAWING FORM 







• • • • • 


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40 



Form IV. Drawing Form 

This form continues the order number at the upper 
right-hand corner. 

The purpose of the form is to have on each sheet of 
working drawings a complete dated record constituting 
its history. 

1. At the top of the form is a space to show what the 
drawing supersedes, so that it may be known what me- 
chanism that is shown in the drawing is designed to take 
the place of. 

2. This is a space for inserting the name and date of 
the drawing which supersedes the one which is being 
made as that event occurs in the future course of busi- 
ness. 

3. The name of the job, such as the name of the en- 
tire machine, is inserted here. 

4. The particular part which is being illustrated is de- 
scribed here. 

5. The tool which may be employed to turn out this 
particular part is noted here. 

6. The operation which is proposed in connection with 
this particular part is described here, 

7. The person who makes the drawing puts his name in 
this blank. 

8. The date of starting is inserted m this space. 

9. In this blank the date of completion is inserted. 

10. The person who checks it should put his initials 

41 



42 HOW TO KEEP INVENTION RECORDS 

here, together with the date, in order to insure its ac- 
curacy. 

11. The head of the drafting room, who approves the 
drawing, or the chief engineer, inserts his name and date 
here. 

12, 13, 14, 19, and 20. A similar procedure, with re- 
spect to tracing — its checking and approval are inserted 
in these blanks. 

15. In this blank is inserted the usual order number. 

16. A shop number given to the piece is inserted in 
this blank. 

17. If the storeroom has a number given to the piece 
for the purpose of ordering additional parts, the number 
will be inserted here. 

1 8. If the planning room has a number given to the 
part, other than the shop number, then it should be in- 
serted here. 

21. In order to prove to whom copies have been given 
of this drawing, it is essential that the namics of the per- 
sons receiving copies should be placed in this blank. This 
is very important as it shows who got a copy of the draw- 
ing. It is valuable to trace these copies in order to de- 
termine the origin of competitors' ideas in case of a con- 
test. 

22. The number of the drawing is inserted here. 

The name of the inventor or the company under 
whose direction the work is being done is customarily in- 
serted. 



FORM V 
MATERIAL PURCHASE RECORD 



o 
u 



< 
u 

< 



> 

O 



Voucher 
Date 


' 


Voucher 
Number 




Invoice 
Date 




Invoice 
Number 




Order 
Date 




Order 

Number 

- 




3 


1. Steel 

2. Castings 

3. Patterns 

4. Brass 

5. Iron 

6. Aluminum 

7. Alloys 

8. Wire 

9. Chemicals 
10. Paper 

etc., etc., . 



44 



Form V. Material Purchase Record 

First Column. — The first step in reducing an invention 
to practice is to order your materials. To identify this 
order of materials with the particular invention, the order 
number identifying the invention should be inserted on 
this card in the upper right-hand corner. On each order 
for material the same order number should be inserted to 
tie the whole system of records together. 

In the first column, beginning at the top, reading to 
the bottom, will be found a sample enumeration of pos- 
sible materials. This can be varied to suit the particular 
case. 

. Second Column. — This contains the order number of 
the person or firm placing the order for the material. If 
possible the same order number should be inserted here 
as has been attached to this invention throughout its his- 
tory. This is essential and by all means should appear 
some place on the order blank. 

Third Column. — This column contains the date of the 
order for materials. 

Invoice Number. — This column contains the number 
of the invoice of the firm who supplies the materials. 

Invoice Date. — In this column is inserted the date of 
invoice. 

Voucher Number. — In this column is inserted the num- 
ber of the voucher or check with which the purchaser of 

45 



46 HOW TO KEEP INVENTION RECORDS 

the material pays for the material in response to the in- 
voice. 

Voucher Date. — In this column is put the date o£ the 
voucher or check drawn by the purchaser to pay for the 
material. 



FORM VI 
CONSTRUCTION RECORD SHEET 



Form VI. Construction Record Sheet 

ORDER NO. 
Date 

1. Started Preliminary Sketches - „ , 

2. Completed Preliminary Sketches , 

3. Started Model , 

4. Completed Model , 

5. Working Drawings 



No. of 
Sheets 



Date 
Started 



Date 
Com- 
pleted 



Date 
Started 



Date 
Com- 
pleted 



6. 

7- 
8. 

9- 
10. 
II. 
12. 
13- 



14. Raw Material 


Date 


Ordered 


Order No. 


15. Raw Material 




Received 




16. Ordered Patterns 


Patterns Nos. 


17. Received Patterns 




18. Ordered Castings 


Casting Nos. 


19. Received Castings 




20. Ordered Machining 


Machining Shop Ticket No. 


21. Received Machining 




22. Ordered Assembly 


Assembly Shop Ticket No. 


23. Received Assembly 




24. Tested 


Test Ticket No. 


25. Result of Test: 




26 




27 


28 


2Q 


30 



48 



Form VI. Construction Record Sheet 

The purpose of this construction record sheet is to have 
a complete record of the construction of the full-size ma- 
chine embodying the invention or of the apparatus for 
its performance if it is a process. In the upper right- 
hand corner is the order number that has been attached 
to this particular invention to identify it throughout its 
history. 

I and 2. Insert here the date of the preliminary sketches 
found on such a form as No. II. 

3 and 4. Insert here the date the model was made. 

5, 6, 7, 8, 9, 10, II, 12, and 13, Referring to Form IV, 
there should be inserted here the record of the working 
drawings. 

14, 15, 16, 17, 18, 19, 20, 21, 22, and 21- In these 
various spaces it will be seen that the dates of ordering 
and receiving the raw materials; ordering the patterns, 
castings, etc. ; doing the machining on the castings and 
assembling, together with the numbers of the correspond- 
ing material orders, pattern numbers, casting numbers, 
numbers on the tickets that will follow the job as it is 
machined, and the ticket of the assembly department, 
should be inserted here. 

24. This should contain the date of the test and the 
test-ticket number showing the complete testing of the 
machine, 

25, 26, 27, 28, and 29, These blanks should contain a 

49 



50 HOW TO KEEP INVENTION RECORDS 

description of the test results, giving such data as may be 
necessary. 

The complete record of the test will be found on the 
following Sheet VII. 



FORM VII 
TEST RECORD SHEET 



Form VII. Test Record Sheet 

ORDER NO 

Drawing No Date . 

Test Ticket No 

I. Description: 

2 

3 

4 



6 

7 

8. Ready for Test : Date 

9. Hand Tested : Date 
10. Result: 

II 

12 

13 

14 

15. Power Tested : Date . 

16. Result: 

17 

18 



19 '-. 

20. Documents hereto attached: 

21. (a) Photographs taken: 

22. Views (i) No. 

23. (2) No. 

24. (3) No. 

25. (4) No. 

26. (b) Record of Tests 

27. Who Present: 

28. I, , swear that the fore- 

29. going is true and correct to my personal knowledge. 

30. 

31. State of , County of SS. 

32. On the day of , 192. . ., 

33. before me, the subscriber, a Notary Public, in and for said 

34. county, personally came and swore to the fore- 

going facts as true and correct. 



Notary Public in and for 

County. 

52 



Form VII. Test Record Sheet 

This sheet is used to record in detail the result of the 
test. This is most important because it will constitute in 
many instances the reduction of the invention to practice 
and is possibly the most important date in a Patent-Office 
interference or in a suit on the patent. 

In the upper right-hand corner is the order number 
which has followed the invention through its history. 
The drawing number and date can be found by referring 
to items 9 and 22 of Form IV. 

The test-ticket number is also inserted here and is taken 
from the ticket which is usually attached to the machine 
in the course of its construction. 

I, 2, 3, 4, 5, 6, and 7. A description of the machine 
and of the test to which it will be put is inserted here. 

8. This is the date when it is ready for test. 

9, 10, II, 12, 13, and 14. If the machine was tested by 
hand and that was sufficient, the date and the result should 
be inserted here. 

15, 16, 17, 18, and 19. If the invention was tested un- 
der its own power or by power applied, according to its 
nature, the date of the test and the result should be 
recorded here. 

20, 21, 22, 23, 24, and 25. The photographs should be 
taken of the machine tested, with a suitable identification 
and description as set forth on the Photographic Record, 
Form IX. 

53 



54 HOW TO KEEP INVENTION RECORDS 

26. The record of the test should be inserted here, 
such as speed, weights, production, power curves, etc.; 
in short, all things which may show the conditions under 
which the test took place and the results of it. Such 
documents should be dated and signed by the persons test- 
ing and witnessing the test. 

27. Frequently, it happens that those who witness the 
test may be important as witnesses, either for or against 
the inventor. It is essential to have a record of those 
persons who were present and who had the advantage of 
seeing the test. 

28 to 34. The person who makes out this sheet should 
swear to it as being correct, and the acknowledgment is 
taken before a notary public or other duly qualified officer 
for administering oaths. 



FORM VIII 
STATEMENT BY WITNESS OF TEST 



Form VIII. Statement by Witness of Test 

ORDER NO 

1. I, ., , on the .... day of . ., , 

2. 192.., first being duly sworn, state as follows: 

3. I was a witness to a test of on the day of 

4 , 192. ., at A.M./P.M. in the City of 

5. County of and State of 

6. (<^) 



8 

9 

ID 

II 

12 

13 

14 

15 

16. State of ^ gg 

17. County of J ' 

18. On the day of , 192. ., before 

19. me, a Notary Public, in and for said county, personally 

20. came and swore to the foregoing facts 

21. as true to the best of his knowledge and belief. 

22. 

Notary Public in and for 
County, 

° Describes test ; what was seen ; how close to device tested ; who 
was present; conditions of test; result of test; any modifications to 
make test successful, etc. 

56 



Form VIII. Statement by Witness of Test 

In the upper right-hand corner is the order number 
which identifies the invention. 

I and 2. Insert here the name of the person witnessing 
the test and the date of the test. 

3. A description of the machine is inserted in this 
blank. 

4. The date on which the test took place should be 
inserted in these blanks, as well as the hour of test. 

5. The place of the test is inserted here. 

6 to 15. In this blank is inserted a description of the 
test and its result, giving all facts of importance. 

16 to 20, Insert here the Notary Certificate for taking 
the acknowledgment of the witness of the test. 



57 



FORM IX 
PHOTOGRAPH RECORD 



Form IX. Photographic Record Form 

ORDER NO ""^ 

1. Name of Device: 

2. Who Took Photograph: 

3. Place: 

4. Date": 

5. Who Present: 

6 

7 

8 

" Print on face of an envelope to carry negative and print. 

'' Put this number on a card on machine, etc., when being photo- 
graphed. 

" Put date of taking photograph on negative at the time of taking, 
if possible. An autographic kodak is of great value for placing the 
date on the negative. 



60 



Form IX. Photograph Record 

The purpose of this record is to preserve definite in- 
formation as to the exact construction. Frequently the 
photograph will show in its background items of interest 
which can be used later to prove the exact date of taking 
the photograph. It will also show, in some instances, the 
persons who were present at the test and thus form a 
record of those facts. 

In the upper right-hand comer is the order number 
identifying the invention which should be shown in the 
photograph when it is taken and should be put upon the 
negative itself at the time of taking the photograph, to- 
gether with the date and place, if it does not show up 
automatically in the photograph itself, 

1. This is the name of the device or invention. 

2. The person who took the photograph enters his name 
here. 

3 and 4, The place and date of taking the photograph 
are inserted here. 

5, Those who are present should have their names in- 
serted here. 

It is very useful to have this form printed on the en- 
velopes to contain the negatives and proofs in connection 
with this matter. 



61 



FORM X 
PATENT DEPARTMENT .RECORD 



Form X. Patent Department Record 

1. Name of Inventor Address of Inventor 

2. Title of Invention 

3. Received from Inventor . . . 192 . . Execution . . . 192 . . 

4. Sent to Patent Office 192 . . Filed 192 . . 

5. Serial No Preliminary Examination 

Sheets of Drawings. 
6 

7. Assignment of interest to Dated 192. . 

8. Assignment forwarded 192 . . Assignment 

returned , 192. . 

9. Recorded 19. . Liber Page 

10. Delivered to Assignee 192. . 

11. Order No 

12. Remarks: 

13 

14 

15 

16 

17 

18 

19 

20 

21. Allowed 192. . 

Final Fee Received 192. . 

22. Six Months Expire 192 . . 

Final Fee Forwarded 192.. 

23. Patent Received 192 . . 

Patent Office Receipt dated 192 . . 

24. Patent No Dated 192. . Del'd .... 192. . 

64 



Form X. Patent Department Record 

When the invention is sufficiently complete, either in 
the form of preliminary sketches or working drawings, or 
a model, it should be taken at once to a competent patent 
counsel. A record of this action can be kept on this 
form. 

1. Insert the name of the inventor and his address. 

2. The title of the invention is inserted here to define 
the class of invention to which it belongs. 

3. The date it was received by the patent counsel is 
inserted in the first blank and the date on which the papers 
were signed to be forwarded to the Patent Office is in- 
serted in the second blank. 

4. The date of sending to the Patent Office is inserted 
here and the date when the Patent Office received it and 
filed the application. 

5 and 6. In these blanks should be inserted the serial 
number which the Patent Office assigns to the application, 
whether or not a preliminary examination (made prior to 
filing the application) had been made in the Patent Office 
to determine whether any one else had probably patented 
the same thing for which a patent had been issued; and 
the number of sheets of drawings with some description 
of the figures and views. 

7. If any or all of the interest in the invention has 
been transferred, the proportion of the interest and the 
date of transfer should be inserted in these blanks. 

65 



66 HOW TO KEEP INVENTION RECORDS 

8. This document affecting the title to the invention 
should be recorded in the Patent Office, and the date of 
sending it forward, and of receiving it back should be 
inserted in these blanks. 

9. The Patent Office will record it in its records ; and 
that place of record and date will show on the face of 
the assignment when it is returned to the solicitor or as- 
signee. 

10. The date of delivery of this assignment to the per- 
son to whom the invention has been assigned can be re- 
corded here also. 

11. This is the order number which has followed the 
invention through its history. 

12 to 20. Any miscellaneous data relative to the prog- 
ress of the invention and its history in the Patent Office, 
together with a list of the patents cited against it, should 
be inserted here. 

21. When the application is allowed, the date of its 
allowance should be entered in this blank. If the final 
fee is received from another, the date of receiving this 
final fee should be recorded here. This fee must be paid 
before the patent will issue. 

■22. There are six months within which to pay this final 
fee from the date on which the application is allowed by 
the Patent Office. This date, when the six months ex- 
pire, should be inserted in the blank here in order to direct 
attention to the time within which the final fee must be 
paid and that the six months may not expire before the 
fee is paid. The fee should be paid, however, promptly, 
and the case gotten out of the Patent Office at the earliest 
practicable moment. There is also a blank in this line for 



RECORD FORMS 67 

recording the date when this final fee was forwarded to 
Washington. 

23. When the formal patent grant is received, its date 
can be recorded here. 

24. The number assigned to the patent, its date, and 
the time when it is delivered to another, can be inserted 
in this line. 



FORM XI 
FOLLOW-UP FORM 















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70 



Form XL Follow-up Form 

This form is a general one to keep track of the prog- 
ress of making and protecting the invention. 

Reading the columns from the left hand to the right 
will be seen the order number, the title of the invention, 
the date when the idea was formulated in the mind of the 
inventor, the date when he told others about it, the date 
of the preliminary sketches, the date when he took up the 
filing of his patent application with his patent counsel, 
the date of making a model which may either precede or 
succeed the sketches, the starting of the working drawings 
and their completion, the ordering of the material, the 
making of the patterns, the making of the castings, the 
machining, assembling, the testing, and the starting of 
commercial production. 

This sheet can be used for keeping a record of a number 
of inventions, each one having its own order number and 
individual series of forms. 

These records are made progressively as the events oc- 
cur. In case of a Patent Office interference to determine 
who made the invention first and who is entitled to the 
patent, all of these dates must be properly proved. If a 
business-like record is kept in the first instance, this be- 
comes very simple and success is assured if the inventor 
is entitled to it. If such records are not kept and the 
dates are noted at random, it frequently happens that 
important and valuable rights are entirely lost. 

71 



72 HOW TO KEEP INVENTION RECORDS 

The very great expense attendant upon Patent Office 
interferences and upon patent litigation is caused primar- 
ily by the failure of the inventor and those who own the 
inventions neglecting to keep business-like records. 

The records presented here are the fruit of many years 
of experience as counsel in a large number of Patent 
Office interferences and in patent litigation extending 
throughout the United States. 

The great burden of expense, which may result from 
closely contested litigation is largely due to the fact that 
the simple precaution of making adequate records at the 
time has not been followed. This has been largely due 
to the fact that there have been no systematic business- 
like records presented in readily available form on which 
the inventor, or a corporation owning the invention, 
might record these essential facts. This set of forms is 
presented for that purpose. The essential particulars are 
included in them. They can be varied in their details 
to suit the individual needs as long as the essentials are 
retained. 



FORM XII 
PATENT LITIGATION RECORD 



Form XII. Patent Litigation Record 



1. Name of Patentee 

2. Title o£ Invention 

3. Date of Patent No. of Patent 

4. Date when infringement was discovered 

5. Name of Infringer Address. . 

6. Date when Infringer Notified 

7. Date of Settlement 

8. Terms of Settlement 

9. Date of Bringing Suit 

10. Date of Settlement 

11. Terms of Suit 

12. Brought in United District Court in City of . . . . 

State of 

13. Name of Attorneys for Plaintiff 

14. Address of Attorneys for Plaintiff 

15. Name of Witnesses for Plaintiff 

16 

17 

18 

19. Names of Witnesses for Defendant 

20. Date of Trial of Case 

21. Date of Decision by Court , 

22. What the Court decided 



74 



Form XIL Patent Litigation Record 

This form is self-explanatory. It is inserted for the 
purpose of convenience in keeping a record of any litiga- 
tion upon the issued patent. 

Litigation should be avoided whenever possible. 
Every effort should be made to effect a settlement, even 
though it may not secure all that the inventor or his as- 
signee may think due. It should be taken into considera- 
tion that even if the entire amount due is recovered, there 
must be deducted from it the expenses of litigation. 

Consequently, a blank is inserted for the date of set- 
tlement before any litigation is started and a date of 
settlement after it is started. A happy compromise is 
the best issue out of litigation. Business friendships are 
too valuable to be disrupted by litigation if it is possible 
to avoid it. The bench and the bar both look with keen 
favor upon the elimination of litigation, contrary to the 
usual impression of the layman. The better the patent 
counsel, the more eager he will be for the interest of his 
client to compromise and settle the litigation, or to pre- 
vent it entirely whenever it is within his power to do so 
to the interest of his client. 

This book is submitted with the hope that its educa- 
tional value will result in enhancing respect for the pa- 
tent law and that splendid system of encouraging and 
protecting inventions which has been evolved from the 

75 



^6 HOW TO KEEP INVENTION RECORDS 

constitution of the United States, the statutes, the deci- 
sions, and the procedure in the Patent Office, which sys- 
tem has so long been capably and ably administered by the 
various agencies of the Government. 



CHAPTER III 

PATENT INVESTIGATIONS 

Money invested in any sort of patent property is money 
needlessly risked unless an investigation is made to see 
if the way is dear to acquire its full results. Infringe- 
ments, anticipations rendering patents invalid, and other 
matters of similar character constantly cost inventors and 
manufacturers thousands of dollars by their failure to be 
fully advised of what the exact situation is as to their 
patents. 

It should be clearly known whether the patent is valid. 
It should be known whether the articles manufactured 
pursuant to the patent will be an infringement of some 
other patent. It should be clearly known what has been 
done in the art for that particular field so as to know 
what portions of the field are open for improvements and 
what new things can be done. Unless this is known, it 
will be impossible for inventors and manufacturers to in- 
telligently invent and to invent with safety ; it will be im- 
possible for them to know the extent of the field ahead 
which will justify them in spending large amounts of 
money for research and experiment. If the field is nar- 
row, their expenditures should be limited correspond- 
ingly. 



n 



78 HOW TO KEEP INVENTION RECORDS 

Anticipation of an Invention 

Before filing an application, if the subject matter is not 
too complicated, a preliminary survey or search should be 
made of the patents in the United States Patent Office to 
see if the same thing has already been done before. If 
it has, then the inventor or manufacturer may devote his 
attention to some other thing wherein the prospects of 
success are brighter. 

The same is true of trade-marks. Before a trade- 
mark is adopted and sent out on the goods in interstate 
commerce, it is essential that a search be made to see if 
the particular trade-mark has already been adopted offi- 
cially by some one else. A search by a competent person 
in the Patent Office records would reveal the true state of 
affairs. 

A case recently arose of a manufacturer of rubber tires 
who adopted a trade-mark and a special tread, secured 
large capital, built his plant, put the trade-mark into his 
corporate name, advertised widely and started shipping 
his goods, only to discover that the trade-mark in which 
he had invested thousands of dollars was held by an- 
other, unknown to him. All this could have been avoided 
if his search had been made prior to plunging into the 
business without advice. 

Purchase of Patents 

In purchasing patents or applications for patents, four 
important things must be considered as to which investi- 
gations should be made. These four important consider- 
ations are: 



PATENT INVESTIGATIONS 79 

1. Would devices manufactured under the patent in- 
fringe any other patent? 

2. Is the patent valid or has some one else done the 
same thing before, in exactly or substantially the same 
way? 

3. Has the owner a real title to the patent which he can 
assign ? 

4. Is the patent infringed by the product of any other 
manufacturer ? 

Infringement 

One of the most useful investigations that can be made 
is that to determine whether devices made under a patent 
you are about to purchase would infringe any other 
patent. Frequently, manufacturers and others are at- 
tracted by a clever device and plunge into the manufac- 
ture of it without attention to anything but the commer- 
cial end of the business. The device makes a huge suc- 
cess only to be confronted with the fact that it is an in- 
fringement of some obscure patent, oftentimes held by 
a competitor for the very purpose of keeping competition 
such as this out of the field. 

The only way to prevent such an unfortunate state of 
affairs is to make a patent investigation in the Patent 
Office. All unexpired patents which may have any bear- 
ing on the particular article in question must be examined, 
and those selected which, apparently, are closest. Then 
there must be a careful opinion rendered covering the 
question of infringement by this article of the various 
claims of these patents. A close comparison must be 
made between each claim of each patent and the article 



8o HOW TO KEEP INVENTION RECORDS 

to which it relates based upon a thorough understanding 
of the patents. 

No manufacturer is safe in proceeding in the manu- 
facture of any article unless such an opinion has been 
had. The opinion should state clearly in plain language 
exactly the reasons of the person rendering the opinion, 
why the claims of these patents are infringed or not in- 
fringed. While it takes technical skill and very great 
care to render such an opinion, yet the result should be so 
plain and so clear, with practical reasons given for the 
views set forth, that a layman can understand it and be 
guided by it. 

The investigation to find the patents bearing on in- 
fringement must be made in the many classes of patents 
in the Patent Office. The Patent Office is divided off 
into 47 divisions (the Trade-Mark Division is the 48th) 
and each one of the divisions has a large number of 
classes under its jurisdiction. In the files of the Patent 
Office the patents are divided into classes and sub-classes, 
with key names for each class and key numbers. Those 
classes which are apparently pertinent must be examined 
and all collateral classes must be carefully examined. 
Not until the man who is making the search begins to 
repeatedly run across the same patents twice can he be 
certain that he is covering the ground so carefully and so 
extensively that no patent has escaped his attention. 

The prior art of this character which is thus turned 
up is valuable not only on the question of infringement 
but valuable for other reasons. Some very excellent 
patents which would be of great importance to purchase 
may be disclosed. Often the inventor is not pushing the 



PATENT INVESTIGATIONS 8i 

patent commercially and would be glad to sell it at a 
reasonable price. Then too, these patents offer a large 
number of suggestions to the engineering and inventing 
departments of the manufacturer. They give a clear line 
on what competitors are doing and what patents they may 
have so that he may avoid running into their special fields. 

Validity of the Patent 

The validity of the patent you are about to buy is a 
matter of grave importance. It quite frequently hap- 
pens that a patent that is very broad upon its face is either 
very limited or invalid entirely. It may be invalid due 
to ignorance on the part of the applicant who thought he 
was the first inventor, it may be invalid because the 
patent office made a mistake, or was careless in issuing 
the patent. Regrettable as that is, that may happen in 
all human institutions. There may be unknown foreign 
or domestic publications which di-sclose the same subject 
matter and thereby invalidate the patent. There may be 
an obscure prior public use which may invalidate the pa- 
tent. All of these things should be checked up very care- 
fully. 

In determining the validity of the patent the first step 
is to make a thorough search of the prior patent art to 
see if any of the disclosures of those patents in the same 
field are the same as the disclosure set forth and claimed 
in the patent you are about to buy. If the same thing has 
been done before or a part of it has been done before, 
then the patent may be invalid entirely or its scope limited 
quite closely. 

A patent purports to cover a certain territory. Its 



82 HOW TO KEEP INVENTION RECORDS 

purpose is to claim broadly certain kinds of machinery, 
for instance. On its face it may cover the entire field, 
but the patent has to be interpreted in the light of other 
patents that have gone before which may narrow its 
scope. The result of the search will show exactly what 
is the territory it can monopolize. 

A careful search should be made of the foreign art. 
Copies of these foreign patents will be found in the United 
States Patent Office and especially helpful are those copies 
found in the files of the examiner in a division. Each 
division has a file of foreign patents that is most helpful 
to it. With the permission of the examiner, these files 
may be examined and very valuable material discovered. 

The technical library of the Patent Office and the 
Library of Congress are fruitful sources of information. 
Very frequently patents are defeated or narrowed by the 
disclosures of advertisements, trade notices, etc., in the 
trade journals, catalogues, and publications on file in 
those libraries. 

Title 

Patent property is like real estate. Its title can and 
should be registered. 

A record of the transfer of patent property is kept in 
the Patent Office at Washington where all documents of 
transfer are sent to be recorded. A careful survey and 
search of these records must be made to determine exactly 
what title is in the person who is endeavoring to sell the 
patent. Unless this is done you may buy either no in- 
terest at all or a lesser interest through fraud or mistake 
on the part of the seller. 



PATENT INVESTIGATIONS 83 

Infringement by Others 

The value of a patent is often determined by how 
powerful a weapon it will be in the struggle with competi- 
tors. Frequently, it is of great advantage to buy a patent 
which may relieve you of infringement and put you in a 
position of having your competitor infringe your patent. 
A patent which is infringed is a strong commercial weapon 
and pushes a manufacturer into a position, according to 
the strength of his patent, of dominating his industry. 
A whole group of patents thus intelligently bought may 
readily give a monopoly which will enable the manufac- 
turer to establish a fine, growing organization on a sub- 
stantial basis during the life of the patents so that when 
the patents begin to expire commercial supremacy will 
have been established and the position of the manufac- 
turer commercially will be made impregnable. 

Investigations Before Invention 

Some of the great inventors, like the Wright brothers, 
have adopted the plan of investigating carefully and 
thoroughly everything in the literature and in the articles 
dealing with their particular field before starting out to 
invent. They have realized that it is useless to attempt 
an invention until it is pretty well known what has been 
done before them. Otherwise, you may simply invent 
something some one else has already discovered before 
you — and the effort is wasted. 

Start where the past has left off, from that point 
plunge on. 

Great industrial institutions like General Electric, 



84 HOW TO KEEP INVENTION RECORDS 

Eastman Kodak, Westinghouse, etc., have been developed 
to a greater or less extent by industrial research. The 
practical profits on seemingly theoretical scientific lines 
have been very satisfactory. Patent research should be 
coupled with industrial research, with the result that the 
fruits of the industrial research will be insured to the 
discoverer. In other words, once having discovered 
something new, whenever possible under the laws, it 
should be protected and preserved for the purposes of 
the business. 

Another phase of the practical patent research work is 
to go into the field before the engineers start and make a 
comprehensive survey of everything that has been done 
in the field — a thorough investigation in every important 
country of all the patents, literature, and technical in- 
formation. The engineers should then start where the 
patent research has left off, so that there will be no waste 
effort in the industrial research department. The gather- 
ing together of all the information of this character and 
seeing to it that it is properly recorded and digested re- 
sults in a firm acquiring a permanent fund of scientific 
information so that its inventors may have a storehouse 
upon which to draw for suggestions and ideas in the de- 
velopment of the firm's products. What the owners of 
the plant have thus paid for, when once collected, is pre- 
served for the future benefit of the business. 

The difficulty with most patent-research work and 
patent work generally is that it is conducted on too 
sporadic and haphazard a basis. It should be conducted 
systematically so that it covers all phases of the entire 
field in which a firm is operating. If this is done, the 



PATENT INVESTIGATIONS 85 

monopoly will be perfect, complete, and secure, with the 
result that competitors are absolutely excluded from the 
particular field in which the firm is operating. 

Industrials following this policy have been able, by a 
constant look-out for new patents, to add to their hold- 
ings and to maintain the monopoly of the field. It is 
rare that one patent is able to dominate an entire field. 

The result of the above is : 

1. A complete monopoly in the field desired. 

2. The development of the newest creations without 
loss of time and money by doing what has already been 
done. 

3. The building up of a permanent supply of informa- 
tion without having it lost by being carried in the indi- 
vidual minds of employees. 

This results in protection both internally and exter- 
nally and insures genuine leadership. 

(1) 



